PDC Statement on Appeals Court Hearing

Mobilize Labor’s Power! Mumia Abu-Jamal Must Be Free!

The following statement was issued by the Partisan Defense Committee, a legal and social defense organization associated with the Spartacist League, on May 19.

The U.S. Third Circuit Court of Appeals in Philadelphia heard oral arguments May 17 in what could be the final stage of legal proceedings for death row political prisoner Mumia Abu-Jamal. As more than 500 of Mumia’s supporters rallied outside the courthouse and many others attended the hearing, prosecutors argued to reinstate the death penalty that was overturned in a 2001 decision by federal district court judge William Yohn, which otherwise upheld every aspect of Mumia’s conviction on the false charge of killing Philadelphia police officer Daniel Faulkner in December 1981. Mumia’s attorneys, headed by Robert Bryan, were allowed to raise only two of more than 20 legal challenges to Mumia’s frame-up conviction—the racially biased jury selection and the prosecutor’s prejudicial summary argument to the jury that Mumia would have “appeal after appeal,” which undermined the “reasonable doubt” standard.

Also before the appeals court is the challenge to the grossly biased post-conviction (PCRA) hearings from 1995 to 1997 before the notorious “hanging judge” Albert Sabo, who presided over Mumia’s 1982 trial and was overheard at the time saying he’d help them “fry the n----r.” During the PCRA hearings, Sabo barred many defense witnesses, quashed defense subpoenas and arrested one of Mumia’s attorneys at the time, Rachel Wolkenstein, for attempting to present evidence of the massive disproportion in death sentences handed to black people in Philadelphia compared to those handed to whites.

Following the Third Circuit hearing, Wolkenstein, who is counsel for the Partisan Defense Committee, warned that “a decision could come within weeks, and whatever they decide will likely be appealed to the reactionary U.S. Supreme Court. This makes it all the more urgent to revitalize mass protest to free Mumia on the basis that he is an innocent man and the victim of a racist, political frame-up.” Wolkenstein continued, “There should be no illusions in these federal appeal proceedings. There is overwhelming evidence of Mumia’s innocence, including the sworn confession of Arnold Beverly that he, not Mumia, shot and killed Faulkner. But for more than 25 years, both the Pennsylvania state and federal courts have rejected or even refused to consider this evidence. The cops, prosecutors and courts—with the support of capitalist politicians, Democrats as well as Republicans—see in Mumia, former Black Panther Party spokesman and a MOVE supporter and outspoken journalist, the spectre of black revolution. The state is determined to carry out Mumia’s legal lynching or bury him in the living hell of life in prison. This must not happen!”

The Third Circuit panel—Chief Judge Anthony J. Scirica and Judges Thomas L. Ambro and Robert E. Cowen—peppered the prosecution with questions about the instructions and verdict form given the jury considering the death penalty as well as the prosecutor’s remarks during his closing argument at the trial that they should convict Mumia because he would have “appeal after appeal.” Many spectators commented afterwards that the judges appeared favorable to Mumia on these issues, which could lead to affirming the reversal of the death sentence and granting a new trial. Offering a more realistic view of the court, Ramona Africa, who spent seven years in prison for being the sole adult survivor of the May 1985 police/FBI bombing of MOVE’s Osage Avenue home, commented after the hearing on the “legal mumbo jumbo”: “They can sit there and look very attentive and appear to be leaning toward the defense and all of that. But it doesn’t mean anything. They can come back with a decision completely opposite.” Wolkenstein observed, “In Mumia’s 1988 Pennsylvania state appeal hearing, the chief judge of the Pennsylvania Supreme Court unequivocally told the D.A. that it was a violation of due process and the court’s own precedents for the prosecution to have made the ‘appeal after appeal’ arguments. This is the same issue now before the federal appeals court. Yet the state Supreme Court decision unanimously denied every defense claim.”

Most of the questions from the judges during the two-hour proceeding focused on the issue of racial bias in the prosecution’s selection of the jury. Bryan said that prosecutors struck 15 potential jurors from the jury pool, ten of whom were black and five white. That, he said, constituted “prima facie evidence” of racial discrimination. But the judges sharply questioned whether Mumia’s attorneys had previously tried to establish a pattern of racist bias in his 1982 trial, including by determining the racial makeup of the more than 100 people who made up the jury pool. Wolkenstein pointed out, “The legal argument made on May 17 by Mumia’s attorneys was incomplete. At the 1995 PCRA hearing, we subpoenaed the Philadelphia County Commissioner of Jurors to establish the racial composition of the entire jury pool, but Judge Sabo quashed that subpoena with the agreement of the prosecution!”

Wolkenstein continued, “We also fought to get additional evidence before the courts. In April 1997, we submitted a supplemental PCRA petition after a ten-year-old videotaped training lecture by then-assistant D.A. Jack McMahon was made public which confirmed that it was the policy and aim of the D.A.’s office to exclude black jurors. This racist practice was also confirmed in a study by David Baldus, documenting that during a ten-year period blacks were 5.2 times as likely as whites to be thrown off Philadelphia juries. The Philadelphia D.A. vociferously opposed the introduction of this evidence, and both the Pennsylvania Supreme Court and Judge Sabo refused Mumia’s petitions to even hold hearings. Contrary to the D.A.’s position argued on May 17 and the statement of Mumia’s current lawyer, Robert Bryan, that the defense was ‘a day late and a dollar short’ in presenting evidence of the racist jury-rigging, it was the D.A. and the courts that prevented this evidence from being heard during the PCRA hearings.” She summed up, “Characteristic of this injustice system, particularly as seen throughout the history of Mumia’s case, the D.A.’s blocking of this evidence previously is now cited as the basis for the court to refuse to even consider it.”

As a member of Mumia’s legal team from 1995 to 1999, Wolkenstein uncovered the confession of Arnold Beverly and other key evidence. In a June 1999 affidavit, Arnold Beverly says that he was hired to kill Faulkner, who was reportedly interfering with prostitution, gambling, drugs and police payoffs, and that “Jamal had nothing to do with the shooting.” Wolkenstein stressed that “no court, including the Third Circuit, has ever considered this or any other piece of the massive evidence of Mumia’s innocence and of the state frame-up.” Wolkenstein resigned from the legal team when Mumia’s lead attorney at the time, Leonard Weinglass, suppressed the Beverly confession. After Mumia fired Weinglass two years later, his next team of lawyers submitted Beverly’s affidavit to both state and federal courts, as well as a declaration by Mumia in which he stated: “I did not shoot Police Officer Daniel Faulkner. I had nothing to do with the killing of Officer Faulkner. I am innocent.” The courts refused to even consider these statements.

Wolkenstein explained that “the courts have suppressed the Beverly evidence because it demonstrates that the injustice done to Mumia was not the work of one rogue cop, prosecutor or judge but the workings of a ‘justice’ system whose purpose is to repress the working class, minorities and the poor on behalf of the capitalist ruling class. Meanwhile, the police and prosecutors have stopped at nothing in their attacks on Mumia: intimidation of witnesses, suppression and falsification of evidence of Mumia’s innocence, and campaigns against any who stand in defense of Mumia.” In the weeks leading up to the May 17 court hearing, the Fraternal Order of Police harassed and threatened Mumia’s supporters, forcing a change of venue for a birthday celebration for Mumia in Philadelphia, and New York City cops harassed a hip-hop event for Mumia.

Addressing the race and class bias inherent in the U.S. capitalist legal system, Wolkenstein stressed that “the kind of pressure that can have an impact on the courts is the social power of the multiracial labor movement demanding that this innocent man be freed now.” The PDC mobilized contingents for the May 17 protests in Philadelphia and San Francisco under the slogans: “Mumia Abu-Jamal Is Innocent—For Class-Struggle Defense to Free Him Now! There Is No Justice in the Capitalist Courts! Abolish the Racist Death Penalty!” The rally in Philadelphia was organized by the International Concerned Family and Friends of Mumia Abu-Jamal and the New York Coalition to Free Mumia, while in San Francisco it was organized by the Mobilization to Free Mumia Abu-Jamal.

PDC Labor Coordinator Gene Herson commented, “We support utilizing every legal recourse on Mumia’s behalf, but without illusions in the capitalist court system.” He pointed out, “It was mass international protest, crucially including trade unionists, that stayed the executioner’s hand in August 1995, after a death warrant for Mumia had been signed. The multiracial labor movement—those who create the wealth of this society and who can shut it down—must be mobilized independently of the forces of the capitalist state.” He contrasted this class-struggle perspective to “those groups who have focused on calling for a new trial for Mumia. This means relying on the same racist courts that railroaded Mumia to death row. It means sowing illusions that Mumia can get justice from the same capitalist state that killed 38 Black Panthers as part of the FBI’s COINTELPRO operations, and that massacred eleven black people, including women and children, in the 1985 firebombing of MOVE.” Herson added, “If successful, the fight for Mumia’s freedom would strike a blow against the government’s evisceration of democratic rights in the name of the ‘war on terror.’ It would give labor a sense of its own power. The fight for Mumia is the fight for black liberation, for the liberation of us all, part of the struggle for socialist revolution.”

Speaking for the New York Labor Black League at the Philadelphia rally, Tom Cowperthwaite said that the “prosecutors, racist cops and politicians of both Democratic and Republican parties” have targeted Mumia “because he speaks the truth about bloody U.S. imperialism and the brutal system of exploitation and racial oppression that is capitalist America.” Cowperthwaite, a member of New York City’s Transport Workers Union Local 100, addressed the crucial need to mobilize labor’s power on Mumia’s behalf. He noted, “When we brought the Big Apple to a grinding halt for three days in December 2005, we weren’t just striking for ourselves but for everyone ground down by the racist, greedy, labor-hating bosses. An injury to one is an injury to all! There’s no substitute for the class struggle!”

As the powerful Congress of South African Trade Unions wrote in the March 2007 issue of Shopsteward: “Mumia’s freedom will not be won through relying on the capitalist rigged justice system. What can really turn the tide is the power of united millions across the world—working people united in struggle to free an innocent man.” Indicating the potential for mass, labor-centered protest, hundreds of trade unionists and prominent individuals internationally have signed a PDC-initiated statement titled: “We Demand the Immediate Freedom of Mumia Abu-Jamal, an Innocent Man.” The statement, which cites the Arnold Beverly confession, has appeared in the Nation magazine and a number of major black newspapers in the U.S. and leftist publications in Europe. Recently adding its voice to this call is the Metro Detroit chapter of the Coalition of Black Trade Unionists. Other signatories include Nobel Prize winning author Nadine Gordimer, Manning Marable, Henry Louis Gates Jr., Cornel West, New York City councilman Charles Barron, Illinois Congressman Danny K. Davis and former Georgia Congresswoman Cynthia McKinney.

Rachel Wolkenstein emphasized, “The ruling class is deadly serious that Mumia Abu-Jamal may soon be another victim of the barbaric death penalty. The frame-up of Mumia symbolizes what the racist death penalty in the U.S. is all about: a legacy of chattel slavery, the lynch rope made legal. We oppose the death penalty on principle—we do not accord the state the right to say who lives and who dies. Mumia must be freed, now!”